2009 WISCONSIN ACT 209
An Act to repeal 49.686 (1) (g), 252.15 (1) (ab), 252.15 (1) (d), 252.15 (1) (e), 252.15 (2) (title), 252.15 (2) (a) (intro.), 252.15 (2) (a) 4., 252.15 (2) (am), 252.15 (2) (b), 252.15 (2) (bm), 252.15 (3), 252.15 (4) (a), 252.15 (5) (a) 11., 252.15 (5) (a) 15. and 252.15 (5) (a) 18.; to renumber 252.15 (5) (a) 3., 252.15 (5) (a) 5. and 252.15 (5) (a) 8. and 9.; to renumber and amend 252.15 (2) (a) 1., 252.15 (2) (a) 1g., 252.15 (2) (a) 2., 252.15 (2) (a) 3., 252.15 (2) (a) 6., 252.15 (2) (a) 7. a., 252.15 (2) (a) 7. ai., 252.15 (2) (a) 7. ak., 252.15 (2) (a) 7. am., 252.15 (2) (a) 7. ap., 252.15 (2) (a) 7. ar., 252.15 (2) (a) 7. at., 252.15 (2) (a) 7. av., 252.15 (2) (a) 7. b., 252.15 (2) (a) 7. c., 252.15 (2) (a) 7. d., 252.15 (2) (a) 7m., 252.15 (5) (title), 252.15 (5) (a) (intro.), 252.15 (5) (a) 1., 252.15 (5) (a) 2., 252.15 (5) (a) 4., 252.15 (5) (a) 6., 252.15 (5) (a) 7., 252.15 (5) (a) 10., 252.15 (5) (a) 12., 252.15 (5) (a) 13., 252.15 (5) (a) 14., 252.15 (5) (a) 17., 252.15 (5) (a) 19., 252.15 (5) (a) 20., 252.15 (5) (b), 252.15 (5m) (intro.), 252.15 (5m) (a), 252.15 (5m) (b) and 252.15 (5m) (c); to amend 48.371 (1) (a), 59.69 (15) (im), 60.63 (10m), 62.23 (7) (i) 9m., 101.02 (19) (a), 103.15 (title), 103.15 (2) (a), 103.15 (2) (b), 103.15 (3), 118.125 (2m) (b), 146.81 (4), 149.12 (1) (intro.), 252.01 (8), 252.11 (5m), 252.11 (7), 252.12 (2) (a) 3. d., 252.12 (2) (a) 5., 252.12 (2) (a) 7., 252.13 (title), 252.13 (1m), 252.13 (1r) (intro.), 252.13 (3), 252.13 (4), 252.13 (5), 252.14 (2) (intro.), 252.14 (3), 252.14 (4), 252.15 (title), 252.15 (1) (am), 252.15 (1) (em) (intro.), 252.15 (1) (fm), 252.15 (4) (intro.), 252.15 (4) (c), 252.15 (5m) (title), 252.15 (6), 252.15 (7) (title), 252.15 (7) (a), 252.15 (7) (b) (intro.), 252.15 (7) (b) 4., 252.15 (7) (b) 5., 252.15 (7) (c) 1., 252.15 (7) (c) 2., 252.15 (7m), 252.15 (8), 252.15 (9), 256.15 (12) (a), 440.20 (4), 631.90 (1), 631.90 (2) (a), 631.90 (2) (b), 631.90 (2) (c), 631.90 (3) (a), 631.90 (3) (b), 901.05 (2) (intro.), 938.296 (1) (d), 938.296 (2) (intro.), 938.296 (2) (b), 938.296 (4) (intro.), 938.296 (5) (intro.), 938.346 (1) (e), 938.371 (1) (a), 968.38 (1) (d), 968.38 (2) (intro.), 968.38 (2) (a), 968.38 (4) (intro.), 968.38 (5) (intro.), 973.017 (4) (b) 1. and 973.017 (4) (b) 2.; to repeal and recreate 252.15 (4) (b); and to create 103.15 (1) (bm), 252.01 (2m), 252.12 (1) (b), 252.12 (4), 252.133 (title), 252.14 (2m), 252.15 (1) (ac), 252.15 (2m) (title), 252.15 (2m) (a), 252.15 (2m) (b) (intro.), 252.15 (2m) (b) 4., 252.15 (2m) (b) 5., 252.15 (2m) (c), 252.15 (2r), 252.15 (3m) (b) 1. to 7., 252.15 (3m) (c), 252.15 (3m) (d) (intro.), 252.15 (3m) (e), 252.15 (3m) (f) 1., 252.15 (3m) (g), 252.15 (4) (bm), 252.15 (5g) (intro.) and (a), 252.15 (5g) (a) 6., 252.15 (5g) (g) 3., 252.15 (5j) (title), 252.15 (5m) (d) 1. (intro.), 252.15 (5m) (d) 2. and 3., 252.15 (5m) (e), 252.15 (7) (b) 5m., 252.15 (7r), 938.296 (1) (bm), 968.38 (1) (bc) and 973.017 (4) (a) 1m. of the statutes; relating to: HIV testing, disclosure of HIV test results, and providing penalties.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
209,1
Section
1. 48.371 (1) (a) of the statutes is amended to read:
48.371 (1) (a) Results of a
an HIV test or a series of tests, as defined in s. 252.01 (2m), of the child
to determine the presence of HIV, as defined in s. 968.38 (1) (b), antigen or nonantigenic products of HIV, or an antibody to HIV, as provided under s. 252.15 (5) (a) 19.
(3m) (d) 15., including results included in a court report or permanency plan. At the time that the HIV test results are provided, the agency shall notify the foster parent, treatment foster parent, relative, or operator of the group home or residential care center for children and youth of the confidentiality requirements under s. 252.15 (6).
209,2
Section
2. 49.686 (1) (g) of the statutes is repealed.
209,3
Section
3. 59.69 (15) (im) of the statutes is amended to read:
59.69 (15) (im) The fact that an individual with acquired immunodeficiency syndrome or a positive HIV test for the presence of HIV, as defined in s. 252.01
(1m), antigen or nonantigenic products of HIV or an antibody to HIV (2m), resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under par. (i) to assert or prove that the existence of the community living arrangement in the municipality poses a threat to the health, safety or welfare of the residents of the municipality.
209,4
Section
4. 60.63 (10m) of the statutes is amended to read:
60.63 (10m) The fact that an individual with acquired immunodeficiency syndrome or a positive HIV test
for the presence of HIV, as defined in s. 252.01 (1m), antigen or nonantigenic products of HIV or an antibody to HIV (2m), resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under sub. (10) to assert or prove that the existence of the community living arrangement in the town poses a threat to the health, safety or welfare of the residents of the town.
209,5
Section
5. 62.23 (7) (i) 9m. of the statutes is amended to read:
62.23 (7) (i) 9m. The fact that an individual with acquired immunodeficiency syndrome or a positive HIV test for the presence of HIV, as defined in s. 252.01
(1m), antigen or nonantigenic products of HIV or an antibody to HIV (2m), resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under subd. 9. to assert or prove that the existence of the community living arrangement in the city poses a threat to the health, safety or welfare of the residents of the city.
209,6
Section
6. 101.02 (19) (a) of the statutes is amended to read:
101.02 (19) (a) The department shall, after consulting with the department of health services, develop a report form to document significant exposure to contact with blood or body fluids that constitutes a significant exposure, for use under s. 252.15 (2) (a) 7. ak
(5g) (c). The form shall contain the following language for use by a person who may have been significantly exposed
had a significant exposure: "REMEMBER — WHEN YOU ARE INFORMED OF AN HIV TEST RESULT BY USING THIS FORM, IT IS A VIOLATION OF THE LAW FOR YOU TO REVEAL TO ANYONE ELSE THE IDENTITY OF THE PERSON WHO IS THE SUBJECT OF THAT TEST RESULT. (PENALTY: POSSIBLE JAIL AND UP TO $10,000 $50,000 FINE)".
209,7
Section
7. 103.15 (title) of the statutes is amended to read:
103.15 (title) Restrictions on use of a an HIV test for HIV.
209,8
Section
8. 103.15 (1) (bm) of the statutes is created to read:
103.15 (1) (bm) "HIV test" has the meaning given in s. 252.01 (2m).
209,9
Section
9. 103.15 (2) (a) of the statutes is amended to read:
103.15 (2) (a) Solicit or require an HIV test as a condition of employment of any employee or prospective employee a test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
209,10
Section
10. 103.15 (2) (b) of the statutes is amended to read:
103.15 (2) (b) Affect the terms, conditions or privileges of employment or terminate the employment of any employee who obtains a an HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, as defined in s. 252.01 (2m).
209,11
Section
11. 103.15 (3) of the statutes is amended to read:
103.15 (3) Any agreement by an employer or agent of the employer and an employee or prospective employee offering employment or any pay or benefit to an employee or prospective employee in return for taking a an HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV is prohibited, except as provided under sub. (2) (intro.).
209,12
Section
12. 118.125 (2m) (b) of the statutes is amended to read:
118.125 (2m) (b) Any pupil record that concerns the results of a an HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV, as defined in s. 252.01 (2m), shall be treated as provided under s. 252.15. In this subsection, "HIV" has the meaning given in s. 252.01 (1m).
146.81 (4) "Patient health care records" means all records related to the health of a patient prepared by or under the supervision of a health care provider; and all records made by an ambulance service provider, as defined in s. 256.01 (3), an emergency medical technician, as defined in s. 256.01 (5), or a first responder, as defined in s. 256.01 (9), in administering emergency care procedures to and handling and transporting sick, disabled, or injured individuals. "Patient health care records" includes billing statements and invoices for treatment or services provided by a health care provider and includes health summary forms prepared under s. 302.388 (2). "Patient health care records" does not include those records subject to s. 51.30, reports collected under s. 69.186, records of tests administered under s. 252.15 (2) (a) 7. (5g) or (5j), 343.305, 938.296 (4) or (5) or 968.38 (4) or (5), records related to sales of pseudoephedrine products, as defined in s. 961.01 (20c), that are maintained by pharmacies under s. 961.235, fetal monitor tracings, as defined under s. 146.817 (1), or a pupil's physical health records maintained by a school under s. 118.125.
209,14
Section
14. 149.12 (1) (intro.) of the statutes is amended to read:
149.12
(1) (intro.) Except as provided in subs. (1m), (2), and (3), the authority shall certify as eligible a person who is covered by Medicare because he or she is disabled under
42 USC 423, a person who submits evidence that he or she has
tested positive for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV, a positive, validated HIV test result, as defined in s. 252.01 (8); a person who is an eligible individual
,
; and any person who receives and submits any of the following based wholly or partially on medical underwriting considerations within 9 months prior to making application for coverage by the plan:
209,15
Section
15. 252.01 (2m) of the statutes is created to read:
252.01 (2m) "HIV test" means a test for the presence of HIV or an antibody to HIV.
209,16
Section
16. 252.01 (8) of the statutes is amended to read:
252.01 (8) "Validated HIV test result" means a result of a an HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV that meets the validation requirements determined to be necessary by the state epidemiologist.
209,17
Section
17. 252.11 (5m) of the statutes is amended to read:
252.11 (5m) A health care professional, as defined in s. 968.38 (1) (a), acting under an order of a court under s. 938.296 (4) or (5) or 968.38 (4) or (5) may, without first obtaining informed consent to the testing, subject an individual to a test or a series of tests to ascertain whether that individual is infected with a sexually transmitted disease. No sample used for performance of a test under this subsection may disclose the name of the test subject.
209,18
Section
18. 252.11 (7) of the statutes is amended to read:
252.11 (7) Reports, examinations and inspections and all records concerning sexually transmitted diseases are confidential and not open to public inspection, and may not be divulged except as may be necessary for the preservation of the public health, in the course of commitment proceedings under sub. (5), or as provided under s. 938.296 (4) or (5) or 968.38 (4) or (5). If a physician or advanced practice nurse prescriber has reported a case of sexually transmitted disease to the department under sub. (4), information regarding the presence of the disease and treatment is not privileged when the patient, physician, or advanced practice nurse prescriber is called upon to testify to the facts before any court of record.
209,19
Section
19. 252.12 (1) (b) of the statutes is created to read:
252.12 (1) (b) "AIDS service organizations" means nonprofit corporations or public agencies that provide, or arrange for the provision of, comprehensive services to prevent HIV infection and comprehensive health and social services for persons who have HIV infection, and that are designated as such by the department under sub. (4).
209,20
Section
20. 252.12 (2) (a) 3. d. of the statutes is amended to read:
252.12 (2) (a) 3. d. Locations for procuring additional information or obtaining HIV testing services.
209,21
Section
21. 252.12 (2) (a) 5. of the statutes is amended to read:
252.12 (2) (a) 5. The department shall perform HIV tests for the presence of HIV and, if appropriate,
tests for the presence of related infections and shall conduct behavioral surveys among population groups determined by the department to be highly at risk of becoming infected with or transmitting HIV and related infections. Information obtained shall be used to develop targeted HIV infection and related infection prevention efforts for these groups and to evaluate the state's prevention strategies.
209,22
Section
22. 252.12 (2) (a) 7. of the statutes is amended to read:
252.12 (2) (a) 7. The department shall distribute funding in each fiscal year to contract with organizations to provide, at alternate testing sites, anonymous or confidential counseling services for HIV and, laboratory HIV testing services for the presence of HIV, and, if appropriate, laboratory testing services for the presence of related viruses.
209,23
Section
23. 252.12 (4) of the statutes is created to read:
252.12 (4) Designation of AIDS service organizations. The department shall designate AIDS service organizations and specify the geographical area of the state in which they are designated to provide services.
209,24
Section
24. 252.13 (title) of the statutes is amended to read:
252.13 (title) Blood HIV tests for HIV.
209,25
Section
25. 252.13 (1m) of the statutes is amended to read:
252.13 (1m) Except as provided under sub. (3), any blood bank, blood center or plasma center in this state that purchases or receives whole blood, blood plasma, a blood product or a blood derivative shall, prior to its distribution or use and in accordance with informed consent under the requirements of conditions under s. 252.15 (2) (b) (2m) (a), subject that blood, plasma, product or derivative to a an HIV test or series of tests that the state epidemiologist finds medically significant and sufficiently reliable under sub. (1r) (a) to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. This subsection does not apply to a blood bank that purchases or receives whole blood, blood plasma, a blood product or a blood derivative from a blood bank, blood center or plasma center in this state if the whole blood, blood plasma, blood product or blood derivative has previously been subjected to a an HIV test or series of tests that the state epidemiologist finds medically significant and sufficiently reliable under sub. (1r) (a) to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
209,26
Section
26. 252.13 (1r) (intro.) of the statutes is amended to read:
252.13 (1r) (intro.) For the purposes of this section, the state epidemiologist shall make separate findings of medical significance and sufficient reliability for a
an HIV test or a series of HIV tests to detect the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV for each of the following purposes:
209,27
Section
27. 252.13 (3) of the statutes is amended to read:
252.13 (3) If a medical emergency, including a threat to the preservation of life of a potential donee, exists under which whole blood, blood plasma, a blood product, or a blood derivative that has been subjected to HIV testing under sub. (1m) is unavailable, the requirement of sub. (1m) shall not apply.
209,28
Section
28. 252.13 (4) of the statutes is amended to read:
252.13 (4) Subsections (1m) and (2) do not apply to the extent that federal law or regulations require that a blood bank, blood center, or plasma center administer an HIV test to whole blood, blood plasma, a blood product, or a blood derivative.
209,29
Section
29. 252.13 (5) of the statutes is amended to read:
252.13 (5) Whole blood, blood plasma, a blood product, or a blood derivative described under sub. (2) that is voluntarily donated solely for the purpose of an autologous transfusion may be distributed to or used by the person who has donated the whole blood, blood plasma, blood product, or blood derivative. No person other than the person who has donated the whole blood, blood plasma, blood product, or blood derivative may receive or use the whole blood, blood plasma, blood product, or blood derivative unless it has been subjected to a
an HIV test under sub. (1m) and performance of the test has yielded a negative, validated HIV test result for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
209,30
Section
30. 252.133 (title) of the statutes is created to read:
252.133 (title) HIV testing for anatomical gifts.
209,31
Section
31. 252.14 (2) (intro.) of the statutes is amended to read:
252.14 (2) (intro.) No health care provider, peace officer, fire fighter, correctional officer, state patrol officer, jailer or keeper of a jail or person designated with custodial authority by the jailer or keeper, home health agency, inpatient health care facility, or person who has access to a validated HIV test result may do any of the following with respect to an individual who has acquired immunodeficiency syndrome or has a positive, validated HIV test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV result, solely because the individual has HIV infection or an illness or medical condition that is caused by, arises from, or is related to HIV infection:
209,32
Section
32. 252.14 (2m) of the statutes is created to read:
252.14 (2m) If a person declines to be subjected to an HIV test, a health care provider may not use the fact that the person declined an HIV test as a basis for denying services or treatment, other than an HIV test, to the person.
209,33
Section
33. 252.14 (3) of the statutes is amended to read:
252.14 (3) A health care provider, home health agency, or inpatient health care facility that tests an individual for HIV infection shall provide counseling about HIV and referral for appropriate health care and support services as necessary. A health care provider, home health agency, or inpatient health care facility that treats an individual who has an HIV infection or acquired immunodeficiency syndrome shall develop and follow procedures that shall ensure continuity of care for the individual in the event that his or her condition exceeds the scope of licensure or certification of the provider, agency, or facility.
209,34
Section
34. 252.14 (4) of the statutes is amended to read:
252.14 (4) Any person violating sub. (2) is liable to the patient for actual damages and costs, plus exemplary damages of up to $5,000 $10,000 for an intentional violation. In determining the amount of exemplary damages, a court shall consider the ability of a health care provider who is an individual to pay exemplary damages.
209,35
Section
35. 252.15 (title) of the statutes is amended to read:
252.15 (title) Restrictions on use of a an HIV test for HIV.
209,36
Section
36. 252.15 (1) (ab) of the statutes is repealed.
209,37
Section
37. 252.15 (1) (ac) of the statutes is created to read:
252.15 (1) (ac) "Authorized representative" means any of the following:
1. A health care agent, as defined under s. 155.01 (4), acting in accordance with a power of attorney for health care that is in effect under s. 155.05 (2).
